The new conscience regulation: gutting protections, laying landmines

Following are direct quotes excerpted from the new conscience
regulation, which included discussion sections of explanations
and interpretations by Obama administration HHS officials.
The regulation can be viewed
here and HHS
commentary here. Comments in
italics by CMA VP for Government Relations Jonathan Imbody
follow the quoted excerpts from the regulation.

HHS: "Sections 88.2 through 88.5 of
the 2008 Final Rule have been removed. Section 88.2
contains definitions of terms used in the federal health care
provider conscience statutes."

"The preamble to the August 26, 2008 Notice of Proposed
Rulemaking (73 FR 50274) and the preamble to the
December 19,
2008 Final Rule (73 FR 78072) addressing these sections
are neither the position of the Department, nor guidance that
should be relied upon for purposes of interpreting the federal
health care provider conscience protection statutes."

These few sentences in the new regulation cut the heart out
of the original conscience regulation. The definitions in the
original regulation were the key to making sure the law
was interpreted correctly, providing concrete examples of
conscience protections backed by law. Examples included
definitions of what constitutes "discrimination"; what it means
to "assistin the performance of abortion"; what is a "health
care entity" and who within a healthcare institution "workforce"
enjoys protection under the law."

HHS: "The
2008 Final Rule did not
provide that the term "abortion," as contained in the federal
healthcare provider conscience protection statutes, includes
contraception. However, the comments reflect that the
2008 Final Rule caused significant confusion as to whether abortion also
includes contraception. The provision of contraceptive services
has never been defined as abortion in federal statute. There is
no indication that the federal health care provider conscience
statutes intended that the term "abortion" included
contraception. "

This is one of the most alarming sections of the new
regulation. It seems entirely possible that this language is
laying a foundation for disallowing conscientious objections
to prescribing or providing contraception and abortifacients. Abortion advocates have been tirelessly pushing legislation to
mandate such provision and prescriptions, and this
language appears to be tailored to that drive to remove ethical
choices from healthcare professionals.

HHS: "Many comments expressed concern
that the
2008 Final Rule would prevent a patient from being able
to give informed consent, because the health care provider might
not advise the patient of all health care options. Partial
rescission of the
2008 Final Rule should clarify any mistaken
belief that it altered the scope of information that must be
provided to a patient by their provider in order to fulfill
informed consent requirements."

Politicians and bureaucrats often speak in code, and good
words too often cover up bad intentions. Every healthcare
professional values informed consent. In this context,
however,the concern is that insuring informed consent could be
interpreted to mean requiring referrals for abortions and other
controversial procedures and prescriptions.

HHS: "The Department received several
comments suggesting that the
2008 Final Rule could limit access
to reproductive health services and information, including
contraception, and could impact a wide range of medical services,
including care for sexual assault victims, provision of HIV/AIDS
treatment, and emergency services. Additionally, a number of
commenters expressed concern that the
2008 Final Rule could
disproportionately affect access to health care by
certain sub-populations, including low income patients,
minorities, the uninsured, patients in rural areas, Medicaid
beneficiaries, or other medically-underserved populations."

"The Department agrees with comments that the
2008 Final Rule
may negatively affect the ability of patients to access care if
interpreted broadly. Accordingly, the Department
partially rescinds the
2008 Final Rule based on concerns
expressed that it had the potential to negatively impact patient
access to contraception and certain other medical services
without a basis in federal conscience protection statutes."

The regulation had been in effect for over two years. No
evidence was presented indicating that any of these claims were
valid. The real threat to patient access to
healthcare--particularly for the poor and those in medically
underserved areas and populations--is the loss of faith-based
healthcare professionals and institutions if they lose the
ability to practice medicine according to conscientiously held
ethical standards.

HHS: "The Department received more
than 300,000 comments addressing its notice of
proposed rulemaking proposing to rescind in its entirety the
2008 Final Rule. More than 97,000 individuals and entities submitted
comments generally supportive of the proposal to rescind the
2008 Final Rule. Nearly 187,000 comments expressed opposition to
the Department's proposal to rescind the
2008 Final Rule."

Note that public comments, including those submitted by CMA
members, supporting the original conscience regulation and
opposing the Obama administration's plan to rescind
it outnumbered those supporting the administration by a margin of
2-1.

HHS: "While the longstanding federal
health care provider conscience protection statutes have provided
protections for health care providers, there was no clear
mechanism for a health care provider who believed his or her
rights were violated to seek enforcement of those rights.
To address these comments, this final rule retains the provision
in the 2008 Final Rule that designates the Office for Civil
Rights (OCR) of the Department of Health and Human Services to
receive complaints of discrimination and coercion based on the
federal health care provider conscience protection statutes."

It is good that the new regulation retains the very important
provision for reporting cases of discrimination to the HHS Office
of Civil Rights. Please do so. Besides addressing your needto
rectify the discrimination, such reports also give us a chance
to see if the administration will aggressively pursue allegations
despite the President's position.

HHS: "The Department received many
comments expressing concern about the lack of knowledge about the
federal health care provider conscience protection statutes in
the health care industry. Many commenters opposed to rescission
related anecdotes of hospitals and other health care entities
failing to respect the conscience rights of health care
providers. The Department believes it is important to provide
outreach to the health care community about the federal health
care provider conscience protection statutes."

The Bush administration had planned an educational outreach
but ran out of time. My concern now with this plan is having a
radically pro-abortion HHS Secretary, President
and administration officials interpreting and explaining laws
designed to protect pro-life healthcare professionals.

HHS: "The Department agrees with
concerns that the
2008 Final Rule may have caused confusion as
to whether the federal statutory conscience protections allow
providers to refuse to treat entire groups of people based on
religious or moral beliefs."

The phrase, "the Department agrees with concerns," is in this
case revealing; HHS political appointees are simply agreeing with
the undocumented assertions of the pro-abortion allies of the
administration. Federal agency officials are supposed to make
regulations based on evidence--not unfounded allegations. Believe
me, if "entire groups of people" actually were being denied
health care "based on religious or moral beliefs," you would
have heard about it on every media and political outlet.

HHS: A substantial number of comments
in opposition to rescinding the
2008 Final Rule maintainedthat
Roman Catholic hospitals would have to close, that rescission of
the rule would limit access to pro-life counseling, and that
providers would either leave the health care industry or
choose not to enter it, because they believed that they would be
forced to perform abortions. Under this partial rescission of the
2008 Final Rule, Roman Catholic hospitals will still have the
same statutory protections afforded to them as have been for
decades.

Catholic and other faith-based institutions have had
protection in law for decades. The problem is that without a
clear implementing regulation, the law remains subject to
wide misinterpretation. This new regulation actually has the
potential to weaken the interpretation of conscience rights, for
example, by asserting that no contraception--even those
with potential abortifacient action--falls under the definition
of abortion.

HHS: "The Department received several
comments addressing the costs to providers of the
2008 Final Rule. Commenters stated that the new certification
requirement imposed substantial additional responsibilities on
health care entities, and that the burden analysis did not
sufficiently account for the cost of collecting information for,
submitting, and maintaining the written certifications required
by the 2008 Final Rule. The Department agrees with these
commenters, and believes that the certification requirements in
the 2008 Final Rule are unnecessary to ensure compliance with the
federal health care provider conscience protection statutes, and
that the certification requirements created unnecessary
additional financial and administrative burdens on health
care entities. The Department believes that amending existing
grant documents to require grantees to acknowledge that they will
comply with the provider conscience laws will accomplish the
same result with far less administrative burden."

All of a sudden the people who brought us over a hundred new
agencies through healthcare "reform" legislation are now
concerned about excessive bureaucracy and paperwork?
The original regulation required certification of compliance with
the law for a reason: it shows that the federal government is
serious about enforcing civil rights laws, and that
institutions that flout the law will be noticed and addressed
accordingly.